Hemans v. United States

• Citation: 163 F.2d 228
• Decision Date: 20 October 1947
• Docket Number: No. 10397.,10397.
• Parties: HEMANS v. UNITED STATES.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

163 F.2d 228 (1947)

HEMANS v. UNITED STATES.

No. 10397.

Circuit Court of Appeals, Sixth Circuit.

July 28, 1947.

Writ of Certiorari Denied October 20, 1947.

O. R. McGuire, of Washington, D. C. (Lula E. Bachman and Willigan G. Comb, both of Detroit, Mich., on the brief), for appellant.

T. P. Thornton, of Detroit, Mich. (Harold D. Beaton, of Washington, D. C., and John C. Lehr and Thompson P. Thornton, both of Detroit, Mich., on the brief), for appellee.

Before SIMONS, ALLEN, and MARTIN, Circuit Judges.

Writ of Certiorari Denied October 20, 1947. See 68 S.Ct. 100.

MARTIN, Circuit Judge.

The appellant, Charles F. Hemans, was convicted by jury verdict in the United States District Court for the Eastern District of Michigan and was sentenced to pay a fine of $1,000 and to be imprisoned for four years for violation of Section 408e, Title 18, of the United States Code Annotated. This section provides: "It shall be unlawful for any person to move or travel in interstate or foreign commerce from any State, Territory, or possession of the United States, or the District of Columbia, with intent either (1) to avoid prosecution, or custody or confinement after conviction for murder, kidnapping, burglary, robbery, mayhem, rape, assault with a dangerous weapon, or extortion accompanied by threats of violence, or attempt to commit any of the foregoing, under the laws of the place from which he flees; or (2) to avoid giving testimony in any criminal proceedings in such place in which the commission of a felony is charged. Any person who violates the provision of this section shall, upon conviction thereof, be punished by a fine of not more than $5,000 or by imprisonment for not longer than five years, or by both such fine and imprisonment. Violations of this section may be prosecuted only in the Federal judicial district in which the original crime was alleged to have been committed or in which the person was held in custody or confinement." May 18, 1934, c. 302, 48 Stat. 782, as amended Aug. 2, 1946, c. 735, 60 Stat. 789.

The indictment upon which the verdict of guilty was found charged that appellant travelled in interstate commerce on or about August 28, 1946, from Ingham County Michigan, in the Eastern District of Michigan, to Washington, D. C., "with intent to avoid giving testimony in a criminal proceeding State of Michigan v. Simon D. Den Uyl, et al. then pending in the Circuit Court for the County of Ingham, State of Michigan, wherein the commission of a felony is charged." The indictment charged, further, that, in the criminal proceeding, a preliminary examination had been set to commence on September 10, 1946; and that Hemans "well knew that he was wanted as a witness at the said preliminary examination."

At the outset, a brief exposition of the unique Michigan law providing for a oneman grand jury would seem essential to a clear understanding of this case.

Section 17217 of the Compiled Laws of Michigan for 1929 Michigan Statutes Annotated, Section 28.943 empowers, within his discretion, any justice of the peace, police judge, or judge of a court of record — who upon the filing of any complaint, even upon information and belief, shall have probable cause to suspect that any crime, offense, misdemeanor or violation of a city ordinance shall have been committed within his jurisdiction — to summon any person able to give material evidence respecting such offense and to compel him to testify "concerning any violation of law about which he may be questioned." The section requires the judge, or justice of the peace, to summon the witness upon the application of the prosecuting attorney, or city attorney; and the proceedings to summon the witness and to compel him to testify shall, as far as possible, be the same as those to summon witnesses and compel their attendance and testimony in other criminal proceedings.

The ensuing section of the Compiled Laws for 1929, No. 17218 Michigan Statutes Annotated, section 28.944 provides in its first sentence: "If upon such inquiry the justice or judge shall be satisfied that any offense has been committed and that there is probable cause to suspect any person or persons to be guilty thereof, he may cause the apprehension of such person or persons by proper process and, upon the return of such process served or executed, the justice or judge shall proceed with the case, matter or proceeding in like manner as upon formal complaint."

The record discloses that Judge Louis E. Coash, a Circuit Judge for Ingham County, took over the duties of one-man grand jury for that county around October 1, 1945, at which time there was pending before his predecessor, Judge Carr, an investigation relating to certain banking legislation. Judge Coash testified that matters pertaining to the particular banking legislation were presented to him as grand juror; and that Hemans appeared before him as a witness several times, being granted immunity by him as one-man grand jury. A grand jury subpoena was issued and served on Hemans, on April 25, 1946, directing him to appear before Judge Coash as a one-man grand jury "from day to day, and at such other times as the Court may order," to testify in a certain cause "entitled in the matter of the complaint of Herbert J. Rushton, Attorney General for the State of Michigan, for a judicial investigation concerning certain criminal offenses."

On July 20, 1946, Judge Coash, describing himself as "Circuit Judge acting under Sections 17217 and 17218 Compiled Laws of the State of Michigan for the year 1929 and acts amendatory thereto," signed and issued a warrant from the Circuit Court of Ingham County, directed to the Sheriff of that county, any member of the Michigan State Police, and to all police officers in Michigan. This warrant recited that there appeared probable cause to suspect that between January 1, 1941, and March 1, 1944, twenty-eight named individuals, including appellant, unlawfully conspired among themselves and with other unknown persons to obstruct the due course of legislation and wilfully and corruptly to affect and influence the action of the Legislature of Michigan and certain members of its Senate and House of Representatives, the Governor of Michigan, and the Assistant Attorney General assigned to act as his legal adviser, in the consideration of any action upon certain proposed and pending legislation, namely Senate Bill No. One of the 61st Michigan Legislature, Regular Session of 1941, amending existing laws relating to financial institutions and banking, "and divers other measures and bills then and there pending in and before said Legislature, the Senate, and the House of Representatives and Governor of the State of Michigan, and which by law might be brought before the said Assistant Attorney General in his public capacity."

The warrant charged probable cause to suspect the named conspirators of offering, tendering, promising, giving and receiving bribes, money and other things of value among themselves and by the unlawful, corrupt and felonious, employment of Assistant Attorney General Byron L. Ballard, as attorney and agent for themselves and for the Michigan National Bank, to aid and assist in defeating the proposed banking legislation by representations, opinions, statements and arguments unfavorable thereto, to the Michigan Legislature, its committees and members, and to the Governor of the state.

The warrant specified by name eight of the conspirators as members of the State Senate, thirteen as members of the State House of Representatives, one as the Assistant Attorney General assigned as legal advisor to the Governor, and seven, including appellant Hemans and the Assistant Attorney General, as givers or promisers of bribes to members of the Senate and House of Representatives of Michigan for the unlawful purpose of influencing their adverse action upon the proposed legislation.

In conclusion, the warrant charged that each and all of the named conspirators "did corruptly, dishonestly, fraudulently, illegally, and feloniously engage and participate in said conspiracy and confederate as aforesaid in violation of the public interest of the people of the State of Michigan, to the jeopardy of the public peace, safety, dignity, and welfare of said State, and the people thereof." The warrant ordered the arrest of twenty-four of the twenty-eight named conspirators. Appellant Hemans was one of the four conspirators not ordered to be arrested.

Judge Coash testified that at all times Hemans had stated that "he would not testify unless he had to," but that he would always add: "If I have to, boys, I will be there, with all the gestures and grease paint." The Judge had, on July 17, 1946, granted him immunity from prosecution. The judicial witness stated that he had not told Hemans that if he did not appear and testify before Circuit Judge O'Hara, who had been assigned to conduct the preliminary examination to ascertain whether there was probable cause to hold the defendants for trial, Hemans' immunity would be revoked.

The preliminary examination had been set originally for August 1, 1946, but was twice continued and was begun on September 10, 1946. Admittedly, appellant was under a continuing subpoena as a witness before the one-man grand jury (Judge Coash), but was not served with a subpoena to appear as a witness before Circuit Judge O'Hara, sitting as examining magistrate. He could not be subpoenaed, because he was not within the jurisdiction of the court.

Although appellant did not testify at his trial, he made an effort, through his attorney's cross-examination of the Government's witnesses, to prove that his motive in leaving Michigan was to put through his resignation from the United States Army, in which he held a commission as Major. The jury was fully justified from the evidence in not believing that this was his motive. On August 20, 1946, Hemans went to the office of Colonel Rhu Taylor, Judge Advocate, U. S. A.,...